THE GERRYMANDER AND THE CONSTITUTION: TWO AVENUES OF ANALYSIS AND THE QUEST FOR A DURABLE PRECEDENT.

• Author: Foley, Edward B.
• Position: Special Issue on Gerrymandering

TABLE OF CONTENTS INTRODUCTION 1732 I. UNIVERSALISM AND PARTICULARISM IN THE 1737 EXPOSITION OF CONSTITUTIONAL RIGHTS A. The Weakness of Universalism with Respect to 1740 Partisan Gerrymanders B. Particularism and Gerrymanders 1749 C. Tying a Particularistic Attack on Gerrymandering to 1755 Specific Constitutional Clauses 1. Due Process 1755 2. First Amendment 1756 3. Judicial Underenforcement 1758 4. Elections Clause 1762 D. Universalism, Particularism, and the Durability of 1765 Precedent II. WISCONSIN, MARYLAND, AND THE FUTURE OF 1779 GERRYMANDERING LAWSUITS IN FEDERAL COURTS CONCLUSION 1784 INTRODUCTION

Ever since Vieth v. Jubelirer, (1) the effort has been to develop a judicially enforceable standard that will convince Justice Anthony Kennedy to invalidate a partisan gerrymander as unconstitutional. (2) The so-called "symmetry standard" did not work in League of United Latin American Citizens (LULAC) v. Perry, at least not all by itself.' (3) Now the focus is on the "efficiency gap" as an alternative measure of partisan bias. (4) There is also the attempt to use the First Amendment, as Justice Kennedy himself suggested in Vieth, (5) as a more promising constitutional vehicle than equal protection for formulating a judicially manageable method of identifying when a redisricting map is infected with excess partisanship. (6) Now that the Court has under review the case from Wisconsin, Gill v. Whitford, (7) the fervent hope of many is that Justice Kennedy will find himself persuaded by one of these new approaches. (8)

It should be evident, however, that it is not enough to convince Justice Kennedy that the judiciary is capable of condemning partisan gerrymanders as unconstitutional. (9) Putting aside the obvious need to hold on to the votes of the four Democratic appointees to the Court, (10) there is the issue of whether Justice Kennedy's replacement on the Court--after he steps down--will adhere to a precedent that subjects gerrymanders to judicial invalidation. In other words, it does no good for Justice Kennedy and the four Democratic appointees to strike down a gerrymander in the spring of 2018, if Justice Kennedy leaves the bench later that year (or the next) and President Donald Trump replaces him with a Justice Antonin Scalia-like conservative who, believing that gerrymanders are nonjudiciable, joins in 2022 with four other Republican appointees (Justices Clarence Thomas, John Roberts, Samuel Alito, and Neil Gorsuch) to overrule the 2018 Justice Kennedy-led decision that struck the gerrymander down.

Justice Kennedy knows well the raw power to overrule a recent precedent solely because one member of the Court has been replaced with another. Justice Kennedy, after all, wrote the opinion in Citizens United v. FEC, (11) which overruled the seven-year-old McConnell v. FEC, (12) solely because Justice Sandra Day O'Connor, who had supplied the crucial fifth vote in McConnell, stepped down in 2006 and was replaced by the more conservative Justice Alito. (13) Even if Justice Kennedy supplies the crucial fifth vote to invalidate a gerrymander in 2018, he must be well aware that he can do nothing to prevent his replacement from exercising the pure judicial power to overrule that decision in exactly the same way that the addition of Justice Alito to the Court gave him the power to jettison McConnell. (14)

Despite this raw power of five Justices to overrule any precedent they wish to discard, not all precedents are equally vulnerable to overruling. Some decisions, even if 5-4 and sharply divisive when rendered, gather a staying power over time and thus resist an effort to undo them. For example, Miranda v. Arizona, the Warren Court case that established the now-famous Miranda warnings, (15) was 5-4 and extremely controversial, with many conservatives wishing for decades to eradicate it. (16) But when the question whether to overrule it actually came before the much more conservative Rehnquist Court in Dickerson v. United States, (17) the Justices upheld it by a vote of 7-2, (18) with the archconservative Chief Justice William Rehnquist himself writing the opinion for the majority (which included Justices Kennedy and O'Connor, both President Reagan appointees). (19) Miranda, Chief Justice Rehnquist explained, had "become part of our national culture." (20) He and his fellow conservatives on the Court were unwilling to unravel the fabric of the nation by attempting to tear Miranda from it. (21)

The key point, then, is that the Court's precedents are capable of gathering a cultural force that immunizes them from subsequent overruling even by newly appointed Justices who are ideologically opposed to them. The Second Amendment decision, District of Columbia v. Heller, likely has this character. (22) Although also a 5-4 decision (23) and extremely controversial, (24) it is doubtful that it would have been overruled even if Hillary Clinton had won the presidency and Merrick Garland, or another Democratic appointee, had replaced Justice Scalia. Like Miranda, (25) Heller has become ingrained in the national culture, and it would have been too disruptive and counterproductive for liberals, despite despising it, to get rid of it. (26)

Justice Kennedy clearly hopes that something similar happens to Obergefell v. Hodges, his opinion for a 5-4 Court that required all fifty states to extend an equal right to marry to same-sex, as well as opposite-sex, couples. (27) If President Trump replaces Justice Kennedy with a Scalia-like Justice, then in theory there would be a new five-vote majority hostile to Obergefell. But notwithstanding the fact that this new five-vote majority likely would not have recognized a constitutional right to gay marriage if it had controlled the Court in Obergefell itself, it does not automatically follow that this new five-vote majority will pull the trigger to overrule Obergefell. (28) On the contrary, Justice Kennedy's opinion embracing marriage equality is quickly becoming interwoven into the national culture, (29) and it is unlikely that even conservatives ideologically opposed to it will see overruling it as a worthwhile expenditure of judicial capital. (30)

So, clearly, some precedents acquire this kind of staying power. (31) But, just as clearly, not all do. (32) McConnell was unable to resist being overruled in Citizens United. (33) Thus, the crucial question for any anti-gerrymandering precedent that Justice Kennedy might render before retiring is whether--like Dickerson, Heller, and perhaps Obergefell--it also could be capable of gaining the necessary staying power.

To consider this crucial question, it is necessary to analyze not only what arguments might convince Justice Kennedy in the first instance to support an anti-gerrymandering majority opinion, but more importantly, what arguments down the road might potentially convince hostile Justices--like Justices Roberts, Alito, Gorsuch, or whoever replaces Justice Kennedy himself--to refrain from overruling that anti-gerrymandering precedent. In thinking along these lines, one must ask what attributes of an anti-gerrymandering precedent might enable it to generate the cultural status that helps make it resistant to subsequent repudiation. To conduct this inquiry, in turn, it becomes necessary to contemplate more broadly the nature of constitutional rights and their role in national culture.

1. UNIVERSALISM AND PARTICULARISM IN THE EXPOSITION OF CONSTITUTIONAL RIGHTS (34)

   In the Court's jurisprudence, some constitutional rights aspire to be universal human rights. In Obergefell, Justice Kennedy depicted the right to gay marriage this way. (35) As he described it, the right to have a soulmate, regardless of one's sexual orientation, inheres in being human. (36) "Marriage responds to the universal fear that a lonely person might call out only to find no one there," (37) Justice Kennedy wrote for the Court.

   Not all constitutional rights, however, are universalistic in nature. The right recognized in Heller surely is not. (38) Other civilized nations have strict limits on gun ownership, and a personal right to possess a handgun would be inconsistent with the laws, including constitutional law, of those societies. (39)

   The reasoning in Heller, too, had no pretense to universalism. On the contrary, its recognition of the handgun right was rooted in the distinctive circumstances of American history and social customs. (40) Inevitably recognizing that the authors of the Second Amendment could not have envisioned the kind of firepower capable of handgun technology today, the Heller Court ruled that the constitutional right to possess a gun is limited to whatever types of gun happen to be "in common use" at the current moment. (41) This limitation permits the government to ban fully automatic weapons because, being especially "dangerous and unusual," they are not widespread. (42)

   Some constitutional rights are mixed, or hybrid, insofar as they have some dimensions that seem universalistic, while in other respects seem particularistic. The freedom of speech is an example. (43) The basic right to express an opinion on an issue of public concern transcends the particular circumstances of American history and culture and, instead, is essential in any society that purports to respect basic human dignity. (44) Other aspects of First Amendment jurisprudence, by contrast, are specifically rooted in the particular circumstances of American historical and cultural experience. New York Times Co. v. Sullivan, the Court's pronouncement of constitutional constraints upon a state's libel laws, (45) famously predicated its holding on the observation that the Alien and Sedition Acts, while initially enforced by federal judges, were deemed unconstitutional "in the court of history." (46) Since Thomas Jefferson and James Madison vehemently protested their adoption, (47) the Alien and Sedition Acts have been held up as precisely the kind of governmental effort...